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Wages of Waiting - the General Damage Cost of Surgery v. Future Surgery

It is widely believed that even if a judge or jury accepts evidence that surgery is necessary and related to the plaintiff's cause, general damages will be less if the procedure is put off until after trial.

Testing the hypothesis is complicated. Vast acceptable ranges of general damage value, personality differences between plaintiffs, specifics of the injury and reasons for delay are just some of the issues creating noise when trying to isolate the single metric of surgery versus a surgery recommendation.

Because the question most commonly comes up in connection with spine surgery, the best available data relates to cervical and lumbar fusions. We gathered two comparison sets, cervical injury as the only primary complaint and lumbar injury as the only primary complaint. These sets were then divided between those for which a fusion was performed before trial and those for which the case was tried with a fusion recommendation still pending. The future surgery cases are those in which the judge or jury included the cost of surgery as part of the special damages. The sets were deliberately kept simple in an effort to reduce effects of extraneous factors. So, for example, we did not consider combined lumbar and cervical injury cases, nor did we consider mixed spine and other primary injuries.

One issue emerges from the data very quickly. With the evolution of ablations (also including rhizotomies and neurotomies) as a treatment option for facet joint pain, recommended fusion surgery seven to ten years out is becoming more common. In that class of cases, the "future surgery" is part of a treatment regimen distinct from what most people mean when they speak of future surgery. In those cases, general damage values remain high.

Outside of the facet injury context, a quick review of the data suggests a definite tolerance for lowered recovery, but other factors often lead to substantial damage awards where fusion surgery remains in the future as well as modest awards in cases where the surgery was already completed.

We will dive deeper into the number in a future post. For now, here is a list of cases over the last 3 years that satisfy the criteria described above. The cases are in date order with trial and appellate results mixed.

Past Surgery

Cervical
  1. Langlinais v. LeBlanc, 18-712 (La.App. 3 Cir. 04/17/19)
    $195,000 - Aggravation of pre-existing cervical injury with post-accident development of myelomalacia - accident related three level fusion at C4-5, C5-6 and C6-7 - future surgery to address residual complaints - prior fusion at C5-6
  2. Wright v. National Interstate Ins. Co., 18-30683 (U.S. 5th Circuit 03/28/19)
    $17,000 - Cervical injury treated with injections and ACDF at C4-5 and C5-6 Jury initially declined to award general damages. Judge Fallon instructed jury that award of medical expenses without general damages was inconsistent. Jury returned with award of $17,000. US 5th Circuit affirmed.
  3. Simpson v. UV Insurance Risk Retention Group, Inc., 628-15 (31st JDC 02/14/19)
    $490,000 - Neck injury treated with two level fusion - four years treatment prior to trial - significant prior history of neck pain and treatment for two prior MVA injuries - admitted abuse of narcotic pain medication and marijuana
  4. Schultz v. Cincinnati Indemn. Co., 2015-11743 (Civil District Court 05/08/18)
    $350,000 - Cervical injury successfully treated with single level fusion
  5. Giavotella v. The Travelers Indemnity Co., 1042796 (18th JDC 03/28/18)
    $215,000 - C5-6 herniated disc treated with ESIs, trigger point injections and acupuncture prior to artificial disc replacement surgery - plaintiff was involved in a less severe accident seven months later - treating physician testified there was no difference in herniation - defense argued intervening cause
  6. Wilson v. Barnes, 631,391 (19th JDC 10/04/16)
    $258,000 - SETTLEMENT $158,000 settlement after jury selection added to prior UM tender of $106,000 for general damages plus uncompensated wage loss of $5,839.50 - Cervical injury requiring 2 level fusion
Lumbar
  1. Langlinais v. LeBlanc, 18-712 (La.App. 3 Cir. 06/12/19)
    $450,000 (MAX) - L5-S1 herniation requiring fusion surgery - surgery was a success - no post-surgery physical therapy required - JNOV was appropriate as to jury general damage award of $5,000, but trial court award of $725,000 was excessive
  2. Taylor v. City of Alexandria, 19-25 (La.App. 3 Cir. 06/05/19)
    $285,000 - Lumbar disc injury with hemilaminectomy and discectomy surgery at L3-4 and L4-5
  3. McCloskey v. Higman Barge Lines, Inc., 2018-1008 (La.App. 4 Cir. 04/11/19)
    $500,000 - Lumbar disc in jury requring L5-S1 injections, discogram and fusion - emergency revision surgery to address complications - positive result for pain reduction after second surgery, but permanent restrictions placed on activities - "no repetitive bending or lifting over 15 pounds”
  4. Keys v. The State of Louisiana, 635,511 (19th JDC 02/05/19)
    $300,000 - L5-S1 disc herniation significantly aggravating prior injury and triggering need for fusion surgery - prior microdiscectomy at the L5-S1 level in 2008 - accident related treatment included ESIs and medial branch block
  5. Jack v. Eldorado Shreveport Joint Venture, L.L.C., 52,454 (La.App. 2 Cir. 01/16/19)
    $246,000 - Lumbar injury with "bulge" at L5-S1 and annular tear at L4-5 - "2-level 360-degree lumbar fusion" - residual pain and possible future surgery - continuing treatment with SI injections
  6. Howard v. Norton, 622,507 (19th JDC 12/18/18)
    $90,000 - Lumbar injury - two level TLIF at L4-5 and L5-S1
  7. Baldassaro v. Travelers Prop. Cas. Co. of America, 727,793 (24th JDC 07/18/18)
    $500,000 - Lumbar injury - three level fusion followed by revision surgery - permanent disability
  8. Corbin v. USAA Cas. Ins. Co., 640,367 (19th JDC 01/12/18)
    $155,000 - Lumbar aggravation of degenerative disc disease with recommendation for fusion surgery
  9. Thibodeaux v. State Farm Mut. Auto. Ins. Co., 2015-0109 (14th JDC 01/04/18)
    $75,000 - Lumbar injury causing pain at L5-S1 with facet arthropathy, annular tear and spinal canal and neuroforaminal stenosis - fusion surgery performed approximately 8 months post-injury - plaintiff died from unrelated causes 27 months after the MVA
  10. Despaux v. RSC Equipment Rental, Inc., 58-141 (25th JDC 11/04/16)
    $850,000 - L4-5 and L5-S1 herniations treated with trigger point injections and 2 level lumbar fusion - Secondary injuries included ulnar nerve entrapment at wrist surgically released and tinnitus from blow to head
  11. Fuller v. D.L. Peterson Trust Co., 50,699 (La.App. 2 Cir. 06/22/16), 197 So.3d 244
    $155,000 - Lumbar injury causing aggravation of pre-existing degenerative disc disease as well as congenital narrowed spinal cord opening causing stenosis - three level lumbar fusion with instrumentation following which surgeon described plaintiff as "doing remarkably well.” The Second Circuit reversed a trial court grant of plaintiff JNOV motion and increase of general damages to $1,200,000. The jury's general damage award was reinstated. 
  12. Burch v. SMG, 2014-1356 (La.App. 4 Cir. 04/07/16), 191 So.3d 652
    $400,000 - Large L5-S1 herniation with S1 nerve impingement - hemilaminectomy and medial facetectomy surgery
  13. Schexnayder v. Bridges, 2015-0786 (La.App. 1 Cir. 02/26/16), 190 So.3d 764
    $600,000 - L5-S1 injury requiring fusion surgery and probable future surgery

Future Surgery

Cervical
  1. Nolen v. Louisiana Farm Bureau Cas. Ins. Co., 18-711 (La.App. 3 Cir. 04/25/19), Unpublished
    $100,000 - Cervical injury with recommendation of 2 future surgeries
  2. Warren v. Laurent, 646,801 (19th JDC 08/14/18)
    $60,000 - Cervical injury with herniation and recommendation for three level cervical fusion - plaintiff suffered from pre-existing cervical degenerative disc disease as well as upper extremity CRPS/RSD - dispute as to whether herniation and need for surgery was caused by accident or was pre-existing - treatment prior to trial included ESIs
  3. Walsh v. Caskey, 126,453 c/w 126,518 (16th JDC 05/21/18)
    $675,000 - Cervical injury with herniation and recommendation for three level cervical fusion - plaintiff suffered from pre-existing cervical degenerative disc disease as well as upper extremity CRPS/RSD - dispute as to whether herniation and need for surgery was caused by accident or was pre-existing - treatment prior to trial included ESIs
  4. Henning v. Held, 2016-13770 (22nd JDC 04/24/18)
    $75,000 - Cervical injury treated conservatively for over 1 year prior to surgical recommendation - court accepted need for future surgery
  5. Hiller v. Harrington, 595,458 (1st JDC 04/16/18)
    $90,000 - Cervical disc and facet joint injuries treated conservatively prior to trial - future facet injections and ablations with projection of fusion surgery in 5 years - jury awarded 75% of low-end cost for all projected procedures
  6. Brown v. Breaux Bridge Ventures, LLC, 17-440 (La.App. 3 Cir. 02/15/18), 239 So.3d 319
    $50,000 - Cervical injury - future ACDF - pain and suffering limited to 8 months as consequence of failure to mitigate by having surgery when recommended - Third Circuit reversed trial court JNOV based on insufficient evidence regarding pain associated with surgery or post-surgical pain as well as "inconsistent testimony and evidence regarding the severity, extent, and location ... of pain”
  7. John v. Simon, 2012-4796 (15th JDC 12/20/17)
    $100,000 - Cervical disc injury - recommended C5-6 ACDF
  8. Ferguson v. Gardenia, 751-952 (24th JDC 01/24/17)
    $90,000 - Large herniation at C5-6 and small herniation at C4-5 - treatment with branch blocks - recommendation for disc replacement surgery
Lumbar
  1. May v. Regional Transit Authority, 2016-08271 (Civil District Court 01/31/19)
    $560,000 - (Questionable relevance) Lumbar injury treated with ESIs and "several bilateral" rhizotomy procedures to address L3-S1 facet joint injury - 5-7 years of future rhizotomies - Treating physician testified that plaintiff is candidate for fusion, but plaintiff testified that she would not have surgery - defense examiner disputed causation on disc findings, but not facet joint injury
  2. Huntley v. 21ST Century Premier Ins. Co., 16-514 (La.App. 3 Cir. 11/02/16), 204 So.3d 1085
    $300,000 - Aggravation and worsening of pre-existing lumbar condition at the L3-4 level causing need for future laminectomy, discectomy and fusion surgery - new right side disc pathology in addition to pre-existing left side problem - dispute as to whether future surgery required laminectomy and fusion instead of only a disectomy
  3. Raymond v. Depositors Ins. Co., 745-747 (24th JDC 10/11/16)
    $772,916 - L4-5 and L5-S1 microdiscectomy and rhizotomy - subsequent imaging of L4-5 facet arthrosis and epidural fibrosis - two future fusion surgeries
  4. Richard v. Gisler, 621,506 (19th JDC 03/28/16)
    $100,000 - Lumbar disc injury treated with microdiscectomy - future spinal cord stimulator implant and possible future fusion

Posted: Aug. 23, 2019